Fred Baumgardner v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 22, 2016
• Docket: 49A02-1507-CR-917
• Status: Published

Opinion

MEMORANDUM DECISION FILED Mar 22 2016, 9:42 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT Hilary Bowe Ricks Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Fred Baumgardner, March 22, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1507-CR-917 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Annie Christ- Appellee-Plaintiff. Garcia, Judge The Honorable Ronnie Huerta, Commissioner Trial Court Cause No. 49F24-1302-FD-12186

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 1 of 11 STATEMENT OF THE CASE

[1] Appellant-Defendant, Fred Baumgardner (Baumgardner), appeals his

conviction for sexual battery, a Class D felony, Ind. Code § 35-42-4-8(a)(1)(A)

(2013), and battery, a Class B misdemeanor, I.C. § 35-42-2-1(a).

[2] We affirm.

ISSUE

[3] Baumgardner raises one issue on appeal, which we restate as follows: Whether

the State committed prosecutorial misconduct by improperly vouching for its

own witness.

FACTS AND PROCEDURAL HISTORY

[4] On January 19, 2013, Baumgardner and his long-time friend and former sexual

partner, D.G., met for dinner, watched a performance, and each consumed

approximately four drinks and three shots of alcoholic beverages. At some

point after midnight, they went to Baumgardner’s residence, and D.G. asked

Baumgardner if he could spend the night there because he did not want to risk

driving intoxicated. They went downstairs to Baumgardner’s room in the

basement where they removed their pants and laid down on Baumgardner’s

bed. Baumgardner attempted to interest D.G. in sexual intercourse, but D.G.

refused stating that he had a boyfriend. After kissing D.G.’s neck and lips,

Baumgardner pulled D.G.’s underwear down and “grabbed [his] penis.”

(Transcript p. 16). D.G. continued to resist, but Baumgardner, while “holding

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 2 of 11 [D.G.] down” with one hand, “[spat] into his [other] hand[,] put it on his

penis[,] and inserted it into [D.G.’s] anus.” (Tr. pp. 17-18). Baumgardner kept

repeating to D.G., “[W]hat your boyfriend doesn’t know won’t hurt him.” (Tr.

p. 18). D.G. finally “lost it”—he rolled off the bed, put his clothes on, and left.

(Tr. p. 18).

[5] Two days later, on January 22, 2013, D.G. reported the incident to law

enforcement and brought with him his blood-stained underwear. D.G. was

interviewed by Indianapolis Metropolitan Police Department’s (IMPD)

Detective David Miller (Detective Miller), who sent him to Methodist Hospital

for a sexual assault examination. After obtaining a search warrant for a buccal

swab, Detective Miller went to Baumgardner’s residence to interview

Baumgardner and execute the warrant on January 28, 2013. Baumgardner first

insisted that D.G. never entered his residence, but then stated that D.G. entered

the residence to use the restroom. When Detective Miller asked him why he

was lying, Baumgardner indicated that he would retain counsel. Detective

Miller executed the warrant and transported Baumgardner’s buccal swab to

IMPD’s property room. Baumgardner’s DNA was later matched with the

DNA material collected from D.G.’s underwear.

[6] On March 19, 2013, the State filed an Information charging Baumgardner with

Count I, sexual battery, a Class D felony; and Count II, battery, a Class B

misdemeanor. At a jury trial on May 12, 2015, the State called D.G., Detective

Miller, and a DNA analyst of the Indianapolis-Marion County Forensic

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 3 of 11 Services Agency to testify. Following the testimonies of the State’s witnesses,

the State made its closing argument:

[State]: So at the beginning of the trial [my colleague] told you that you would hear from [D.G.] and he would tell you about what happened to him that night um, the night of [January 19, 2013,] into the early morning hours of [January 20, 2013]. And what you heard was [D.G.] tell you the truth and you heard some corroborating evidence that went along with that. You heard [Baumgardner’s] statement through [Detective Miller] that they were friends, they’d known each other for a while. They had engaged in intercourse before … [Baumgardner] actually said they only had sex one time and the victim, [D.G.], indicate[d] that they actually had um, sex more than that[;] so he was telling the truth about that. He didn’t hide the fact that he had sex with...

[Defense]: I’m going to object at this point to her testifying that someone was telling the truth.

(Tr. p. 94).

[7] The trial court sustained the objection, and the State continued:

[State]: You also heard them say that they both agree that they were friends, that they’d known each other for quite a while and um, that there was no reason for anything going on and bad on (sic.) their relationship. They um, hadn’t talked to each other for a while and then they um, meet each other up to just catch up right, like friends do. You text each other and then you see each other. There was no conversation about sex uh, before or after when they were out drinking at the bar, there was no conversation about sex on the drive home. [D.G.] told you[, “]I was too drunk to drive[,”] so they [went] home[;] he told you,

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 4 of 11 [“H]onestly, I drunk a lot that night, okay maybe it was four beers maybe it…[”]

[Defense]: Judge again the word honestly, truth all of those [the State] can’t refer to those in closing argument.

[Court]: Okay, [the State] please refrain from um, those specific words.

(Tr. p. 95).

[8] Finally, when discussing the DNA evidence from D.G.’s underwear and its

match to Baumgardner’s DNA, the State again stated, “[D.G.] was honest, oh

sorry, I will not use that word, he tried to tell you the truth about what would

happen and you can believe that because he told you everything about their

relationship.” (Tr. p. 97). At the conclusion of the jury trial, Baumgardner was

found guilty as charged. On June 30, 2015, the trial court sentenced

Baumgardner to an aggregate term of 730 days of imprisonment suspended to

probation.

[9] Baumgardner now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[10] We first note that the State did not file an appellee’s brief. The obligation of

controverting arguments presented by the appellant properly remains with the

State. Bovie v. State, 760 N.E.2d 1195, 1197 (Ind. Ct. App. 2002). When the

appellee does not submit a brief, the appellant may prevail by making a prima

facie case of error—an error at first sight or appearance. Id. However, we are Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 5 of 11 still obligated to correctly apply the law to the facts of the record to determine if

reversal is required. Id.

[11] Baumgardner alleges that the prosecutor committed misconduct by improperly

vouching for the State’s witness. Specifically, in her closing argument, the

prosecutor stated that Baumgardner and D.G. “had … sex more than [once] so

[D.G.] was telling the truth about that.” (Tr. p. 94). The prosecutor further

stated to the jury, “[D.G.] told you[, ‘]I was too drunk to drive[,’] so they [went]

home[;] he told you, [‘H]onestly, I drunk a lot that night, okay maybe it was

four beers maybe it…[’]” (Tr. p. 95). Finally, the prosecutor stated, “[D.G.]

was honest, oh sorry, I will not use that word, he tried to tell you the truth

about what would happen and you can believe that because he told you

everything about their relationship.” (Tr. p. 97).

In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise. A prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct. Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct. To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct occurs—request an admonishment to the jury, and if further relief is desired, move for a mistrial.

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 6 of 11 Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (internal citations omitted), reh’g

denied.

[12] We have previously held that it is inappropriate for a prosecutor to make an

argument which takes the form of personally vouching for a witness. Gaby v.

State, 949 N.E.2d 870, 880 (Ind. Ct. App. 2011). As set forth in the Rules of

Professional Conduct:

A lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of the accused[.]

Ind. Professional Conduct Rule 3.4(e) (emphasis added). However, a

prosecutor may comment on the credibility of the witness if the assertions are

based on reasons which arise from the evidence. Gaby, 949 N.E.2d at 881.

[13] Baumgardner asserts that the prosecutor’s conduct in this case resembles the

prosecutor’s conduct in Gaby “to a tee.” (Appellant’s Br. p. 13). In Gaby, a

child molestation case that was tried more than ten years after the alleged

conduct, the State’s case was based on the child’s recollection of the events. Id.

at 873. During closing argument, the prosecutor stated that she was

“confident” that the jury would “come to the same conclusion” that she and the

police detectives had come to. Id. at 881. The prosecutor continued, “I cannot

and would not bring charges that I believe were false.” Id. The prosecutor

finally stated, “I can tell you that with a guilty verdict on this case I will be able Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 7 of 11 to sleep fine tonight. Just fine. In fact, better than fine. You will be able to

also.” Id. We found that the prosecutor’s remarks constituted improper

vouching for the child’s credibility, which was the central issue in the case. Id.

As such, we held that

[a]lthough we recognize that the prosecutor’s comments were in response to [the defendant’s] argument that [the child’s] accusations were false, the prosecutor’s response still crosse[d] the line into improper vouching as her comments were not based solely on reasons which arose from the evidence, but rather, asserted a personal knowledge of the facts at issue.

Id.

[14] Nonetheless, we find Baumgardner’s reliance on Gaby to be misplaced.

Baumgardner argues that “D.G.’s credibility, or lack thereof, was really the

only issue for the jury to decide.” (Appellant’s Br. p. 9). He acknowledges that

the “uncorroborated testimony of a single witness,” a testimony similar to the

child’s testimony in Gaby, could be deemed sufficient to sustain a conviction on

appeal. (Appellant’s Br. p. 17). Baumgardner continues, “Sufficient does not

mean overwhelming, however; there were parts of D.G.’s testimony that

seemed implausible, but the State diminished their affect [sic] by arguing that if

[D.G.] was honest about some of it, he must be truthful about all of it.”

(Appellant’s Br. p. 17). We disagree. While it is true that parts of D.G.’s

testimony seemed implausible, his testimony was not the only evidence

presented to the jury. Contrary to Baumgardner’s argument and unlike the

child’s testimony in Gaby, D.G.’s testimony was corroborated by other

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 8 of 11 evidence, such as the physical DNA evidence and Detective Miller’s testimony

at trial.

[15] Further, our review of the record indicates that the prosecutor’s comments

during her closing argument were not unfounded attempts to bolster D.G.’s

credibility, but were assertions and conclusions, albeit poorly worded,

sufficiently supported by the evidence presented at the trial. Specifically, the

prosecutor’s remarks regarding Baumgardner and D.G.’s sexual relationship

were supported by D.G.’s numerous admissions during the trial, the DNA

material found in D.G’s underwear that matched Baumgardner’s DNA, and

Detective Miller’s testimony, who testified that Baumgardner informed him

that “they were friends but that they had sex[;] it was on one other occasion …

threesome with a, with [an] ex-boyfriend or boyfriend at the time.” (Tr. p. 55).

The prosecutor’s statement when she said, “[D.G.] told you[, ‘]I was too drunk

to drive[,’] so they [went] home[;] he told you, [‘H]onestly, I drank a lot that

night, okay so maybe it was four beers maybe it…[,’]” was not even vouching

because the prosecutor was quoting and paraphrasing D.G.’s statement, where

the adverb “honestly” in the context of the whole statement served to indicate

the speaker’s attitude.

[16] In sum, although the objectionable words somewhat bolstered the credibility of

the witness and the State should have refrained from using these specific words

after two sustained objections, we find that the prosecutor’s statements in their

entirety were nonetheless supported by the evidence and the effect of the

specific words on the jury’s decision was minimal because the jury received

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 9 of 11 proper preliminary and final instructions. See, e.g., Neville v. State, 976 N.E.2d

1252, 1263-65 (Ind. Ct. App. 2012) (the defendant was not placed in grave peril

by prosecutor’s statement because the trial court’s preliminary and final jury

instructions diminished any persuasive effect the prosecutor’s comments might

have had on the jury’s decision if left unanswered), trans. denied; Stephenson v.

State, 742 N.E.2d 463, 485 (Ind. 2001) (“Having found that any prosecutorial

impropriety which may have occurred was de minimus or otherwise overcome

by the trial court’s admonishments and instructions, we are unable to conclude

that Defendant was placed in grave peril.”). Specifically, in its preliminary

instructions, the trial court informed the jury that it must base its decision only

on the evidence presented during the trial and the trial court’s instructions on

the law. In its Preliminary Instruction No. 15, the trial court tendered:

When the evidence is completed, the State and the Defense will make final statements. These final statements are not evidence but are given to assist you in evaluating the evidence. Each side is also permitted to argue, to characterize the evidence and to attempt to persuade you to particular verdicts. You may accept or reject those arguments as you see fit.

(Appellant’s App. p. 115).

[17] In its Final Instruction No. 8, the trial court also stated:

The unsworn statements or comments of the Defense and the Prosecutor should not be considered as evidence in this case. It is your duty to determine the facts from the testimony and the evidence admitted by the [trial court] and given in your presence

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 10 of 11 and you should disregard any and all information that you may derive from any other source.

(Appellant’s App. p. 132).

[18] Under these circumstances, we find that the jury instructions were sufficient to

overcome any potential harm to Baumgardner from the prosecutor’s use of the

specific words. We further find that, when referring to D.G.’s credibility, the

prosecutor did not base her comments on her personal opinion, but instead

based it on the evidence presented at the trial. As such, we conclude that the

prosecutor’s comments did not place Baumgardner in a position of grave peril

to which he would not have been subjected otherwise.

CONCLUSION

[19] Based on the foregoing, we hold that there was no improper vouching.

[20] Affirmed.

[21] Najam, J. and May, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-917 | March 22, 2016 Page 11 of 11